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The People’s Court — Revisited

One of EUtopia Law’s stated goals is to advance “the debate on topical issues” in matters European. In that spirit, this piece seeks respond to certain points made in Dr. Oliver Gerstenberg’s post about the recent decision of the German Constitutional Court on the Greek bailout. My views are a bit in tension with Gerstenberg’s, as you will see, so let the debate (at least as far as this new forum is concerned) begin.

My reservations do not concern Gerstenberg’s able summary of particular elements of the German court’s reasoning. Rather, it concerns his critique of the court for relying on understandings of democracy centered on the nation-state, and, by implication, for being insufficiently imaginative about the possibilities of a new kind of democracy at the EU level.

The suggestion, which we have seen made before by others, is that the German Constitutional Court should recognize, as so many sophisticated theorists have done, that new, non-hierarchical forms of democracy are possible in the EU, ones not necessarily tied to representative government on the national level. If the German court were only to appreciate these conceptual possibilities, the argument seems to go, then it could become an imaginative force for rethinking the nature of democracy in the European context, while also allowing the EU to address the number of serious crises confronting it.

This is all fine and good on a theoretical level. But one cannot simply wave the “conceptual magic wand,” so to speak, and make Europeans experience the EU in these novel, purportedly democratic terms. And this political-cultural hesitancy on the part of Europeans, if that is what it is, finds expression in judicial decision making.

The problem with the EU is two-fold. On the one hand, it purports to be based on representative democracy on the national level (see Article 10 TEU post-Lisbon); but on the other, with ever increasing delegations of authority, it threatens to empty national democracy of its historical and culturally recognizable content, without replacing it with forms of governance that are themselves experienced as democratic.

But Europeans still “live” democracy in fundamentally national (or perhaps sub-national) terms, of course subject to the demands of human rights. They see the legitimacy of the EU is derivative, delegated, and essentially that of a large-scale administrative agent, which should be constitutionally judged accordingly. Hence the red-lines that the German Constitutional Court has attempted to draw, not just in this judgment, but in decisions going all the way back to the court’s 1993 judgment on the Maastricht Treaty (BVerfGE 89, 155, translated into English as Brunner v. European Union Treaty [1994] 1 CMLR 57), which are designed to preserve some semblance of constitutional democracy on the national level while still allowing further integration to proceed. (For a discussion, see chapter 4 of my most recent book, Power and Legitimacy: Reconciling Europe and the Nation-State.) The German court will continue to police those red-lines as long as Europeans (not just Germans) largely “live” their democracy in fundamentally national terms. And no amount of conceptual theorizing can in and of itself change that reality. Rather, theorists must begin to convince Europeans, in a genuinely political-cultural sense, that something akin to democracy exists at the EU level, capable of legitimizing its otherwise delegated authority in democratic terms, unmediated through constitutional oversight by national institutions. In short, given the needs of such mediated legitimacy, the EU will remain a powerful, but fundamentally administrative-type, agent of the constitutional Member States that comprise it.

No doubt the EU is faced with extraordinary functional demands, not least as regards the future (if any) of the Euro. The stresses and strains on the single European currency may simply be an instance of broader challenges the states of Europe face in a globalizing world. And the EU level may well be the functionally appropriate level to respond to those challenges. But it has yet to become the constitutionally appropriate level. This will not happen until Europeans are prepared to accept the costs to national democracy that boundless integration necessarily entails. Otherwise, citizens of individual Member State will continue to insist on the sorts of decisions that the German Constitutional Court handed down on 7 September 2011. This decision seeks to strike a necessary balance between the functional delegation of power to the EU level and the persistence of legitimacy, both democratic and constitutional, within the nation-state.